Don't get hung up on idea of a hung jury

Late last week, during the Seth Mazzaglia murder trial in Strafford County Superior Court, dreaded words were uttered by a trial-watcher: “I think this will end in a hung jury.”

Perhaps “hung jury” is not a particularly appropriate term given the jury on Thursday was shown pictures of hanging bodies. That display came during the testimony of Dr. Jennie Duval of the state's Medical Examiner's Office. The hanging bodies were shown to help the jury see how witness' descriptions of Elizabeth “Lizzi” Marriott's face in death compared to those who died from rope strangulation.

After 17 days of trial so far, the who-knows-how-long upcoming testimony by defense witnesses, and the unknown time a jury will need to deliberate, a hung jury is not what anyone wants.

To all the nonlawyers in the gallery, the many pretrial predictions about evidence seems to have come true. Aside from the testimony of Kathryn “Kat” McDonough, little else has been heard that can be seen as directly pointing to Seth Mazzaglia as Marriott's killer.

For legal purposes, however, having not only an eyewitness but one who has admitted to being a participant in the crime is usually strong enough evidence to make a solid case.

From the start of the investigation there have been two problems: Marriott's body was never found (eliminating possible forensic evidence) and McDonough either on her own or in cahoots with Mazzaglia initially concocted so many lies about the murder that the truth of her current testimony can be questioned. Adding to the worry for the prosecution, I presume, is that McDonough was given what many consider a light sentence with immunity from some prosecution in exchange for her truthful testimony.

Truthful is the word expected to be the real debate in the closing arguments of both the prosecution and the defense attorneys.

Perhaps to simplify, can the prosecution blunt the defense's closing arguments that reasonable doubt has not been overcome?

So what happens if there is a “hung jury”?

The jury verdict in this case must be unanimous; if just one juror sees things differently from the other jurors it can create a deadlock.

At the extreme, a deadlocked jury could cause a judge to dismiss the case and invoke a double-jeopardy ruling. That means the defendant could not be retried for the crime. It is described as the judge declaring a “dismissal with prejudice” that would block any effort to retry the case. But, if the judge was to determine an absolute that a jury cannot reach a verdict, he could call a mistrial and allow new trial.

Both Strafford County Attorney Tom Velardi and Co-Director of Justice Works at UNH, Charles Putnam, discussed this issue for Foster's, and both doubt there will be hung jury, or that if there is, the judge would deny another trial.

The final decision to declare the mistrial, and allow another trial, is made by the judge; but it is described as a difficult conversation with the defense attorneys and the prosecution.

But, there are influences at work. Putnam noted the prosecution, defense and a judge need to be mindful of the resources it takes to put on a trial. In both money and time, it is an expensive event. Calling a mistrial is something all sides will work to avoid.

On the other hand Putnam said, it is a fairness issue for the defendant that a jury does not feel they have been coerced into making a decision.

He said it was important to the legal process that expediency or convenience does not influence a decision by a jury.

So, before there is only the choice of a mistrial, a number of other alternatives are more likely.

First, the judge — in this trial Strafford County Court Judge Steven Houran — would have to be convinced the jury is absolutely deadlocked and nothing will change the vote.

Before reaching that decision, the judge would poll the jury to see how far apart they are in making a unanimous decision.

Houran would also determine if the jury worked hard enough and long enough on the case to reach a unanimous decision. That is a subjective decision by a judge, but it was explained that while a three-hour jury deliberation in a Driving While Intoxicated case would be considered appropriately hard work if there was a deadlock, a judge would demand much more deliberation in a complicated case like this.

The judge could send the jury back to review the evidence and spend more time discussing how they feel and how they should vote.

The judge might also explain to the jurors that if he were to declare a mistrial, a new trial would be heard by another jury and it is likely that jury would come to a decision. The suggestion is that a decision is going to be made one way or another: You've put in the time. Make a decision.

Putnam added some additional perspective. He said, meaning no disrespect to the media or the trial watchers, that his experience is the jury sees everything about a trial in a different perspective than the observers.

He has great confidence in the jury system, he said, and what the jury takes into consideration as evidence, how they discuss that evidence and the weight they give it.

“They follow the rules of evidence,” he said, “and they follow the instructions of the judge.”

It is a very important responsibility of our democracy he said. Jury members take this responsibility seriously.

Judge Houran is described as a deliberate, well-informed and patient judge. He has shown those traits throughout this trial. He is soft-spoken and engaged in what is happening in his court. There is confidence he will be patient with the jury and clear in his instructions to them while suggesting resolutions to any blocks they might encounter. He is what this jury may need to wade through all the evidence and understand how and why they should make their decisions.

As noted earlier, it is still possible Judge Houran could declare a mistrial and disallow a retrial if there is a deadlock.

But that seems extremely unlikely.

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